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Today's Stories January 18, 2008 Allan Nairn Killing Civilians, Carefully Ralph Nader When the Big Boys Get in Trouble, Who Pays the Ultimate Bill? Alan Farago The Stimulus and the Meltdown   January 17, 2008 Paul Craig Roberts Leader and Vassal Christopher Brauchli The FBI's Bills Come Due Robert Fantina Leadership, Bush and the New York Times Patrick Irelan Eternal War Paul A. Moore When the Rich Pay No Taxes Stephen Lendman Institutionalized Spying on Americans Beena Sarwar Bhutto and the "State Within a State" Walter Brasch Buzzwords in the Echo Chamber: Change and the Establishment Brenda Norrell Bush Legacy in Texas Sours Adam Federman End of the Left? Website of the Day Democrats for Romney   January 16, 2008 Jeffrey St. Clair Return of the Native Franklin Lamb The Bombing at Qarantina Julian Sanchez David Weigel Who Wrote Ron Paul's Newsletters? Sharon Smith Ron Paul and the Left: a Slippery Slope? Allan Nairn Economic Indicator: No Free Lunch, No Free Market Ayesha Ijaz Khan How the American Media Enables Bush's Iran Fixation Andy Worthington A Strategic Call to Close Guantánamo Richard Behan Nancy Pelosi, You Must Impeach! Website of the Day Obama the New JFK? He's Not That Bad!       January 15, 2008 Andrea Peacock Breach of Trust in America's Most Toxic Town: How the EPA is Rubbing Poison Into Libby's Wounds Wajahat Ali An Interview with Seymour Hersh on Iraq, Bush Foreign Policy and the Prospects of War with Iran Joe Bageant Getting Out the Bling Vote Ralph Nader The Candidate Taboos John Ross Zero Hour: NAFTA and Mexico's Agrarian Apocalypse Elaine Cassel Jose Padilla vs. John Yoo: Can a National Disgrace be Rectified? Peter Morici The Fed Needs More Than a New Communications Strategy Beena Sarwar Pakistan's Dirty Tricks Brigade Robert Weissman Big Business is Even More Unpopular Than You Thought Binoy Kampmark Going Tata in India Dave Zirin Dennis Brutus Smacks Down the Hall of Fame Website of the Day David Lynch on the iPhone   January 14, 2008 Ishmael Reed Ma and Pa Clinton Flog Uppity Black Man Roger Morris Burials in the Sind Uri Avnery The Hands of Esau Mike Whitney Bush's Voodoo Stimulus Package Allan Nairn General Suharto of Indonesia: One Small Man Leaves a Million Corpses William Blum Oh, By the Way, the Iraqis Don't Really Want Us Alan Farago A Subprime Wake Up Call David Macaray Are Labor Unions Ready for Prime Time? Eva Liddell Getting Drunk with Obama Zoe Blunt Road Kill: New Highway Blocked by Protesting Raccoons Website of the Day Doug and Andrea Peacock on Grizzlies   January 12 / 13, 2008 Andrew Cockburn How the New England Journal of Medicine Undercounted Iraqi Civilian Deaths Saul Landau 60 Years of Empire Corey D. B. Walker Barack Obama and the Crisis of the White Intellectual Col. Dan Smith Bush, Iran and the Magician of the Tarot Eric Toussaint The US Subprime Crisis Goes Global Ron Jacobs Television, Murder and Vietnam Fred Gardner The People vs. Christopher James Chakos Stan Cox Don't Take That Pill! Jacob G. Hornberger The Warfare State Ramzy Baroud The Good, the Bad and the Ugly Joseph Grosso The Anglosphere: a Special Relationship of Elites David Díaz-Arias Imagining An/Other Latin American Left Stacey Warde Before We Move On ... Dan Bacher Pumped to Extinction: the Decline of the Delta Smelt Michael Dickinson Georgie in Jesusland Website of Weekend CounterPunchers Protest Outside NYT Offices   January 11, 2008 Dave Lindorff Did Hillary Really Win New Hampshire? More Questions About Diebold Voting Machines Paul Craig Roberts No Escape from War and Unemployment Andy Worthington Six Years of Guantánamo Kenneth Couesbouc Banking on Thin Ice Jeff Ballinger Inside the Vienna Consensus Christopher Brauchli Lethal Injection, the Supremes and China Manuel Garcia, Jr. Paying No Attention to the Presidential Campaigns Andrew Silverstein Bush's Weepy Visit to Jerasulem Marwan Bishara Bush in the Middle East Robert Weissman The First Amendment Gone Wild Patrick Irelan Damn the Small Boats! Website of the Day Hillary and the Superdelegates: Or Why She Wins Even When She Loses     January 10, 2008 Alexander Cockburn Now Nader Claims He Didn't Endorse Edwards Bob Wing Marqueece Harris-Dawson Race Within the Race: Obama, the NH Vote and the Specter of Tom Bradley Michael Donnelly White Women Gone Wild? David Macaray Three Big Reasons for the Decline of Labor Unions China Hand Bush's Delusional Policy Pushes Pakistan to Brink of Catastrophe Ayesha Ijaz Khan Saudi Arabia and Pakistan: Brotherly, Friendly Countries? Rannie Amiri Obama, Man of Kansas or Kenya? Website of the Day Iranian Video of the Hormuz Incident   January 9, 2008 Cockburn / St. Clair The Empire Strikes Back Dave Lindorff The Bad News from New Hampshire: Death By Triangulation John Chuckman Pardon My Laughter: Watching the US Primaries from Canada James Bovard Stomping Freedom: Inside the Martial Law Act of 2006 Alan Farago As Florida Sinks: the View from the Titanic Russell Mokhiber Why Picket the New York Times in DC on Friday? William S. Lind Kicking the Can Down the Road in Iraq Peter Morici Beyond the Sophistry: Why the Trade Deficit Matters Josh Reubner Sudan vs. Israel: Double Standard on Divestment Mike Roselle The Pursuit of Happiness Website of the Day Bottles of Tears on the Wall: Steve Perry on NH   January 8, 2008 Paul Craig Roberts No Jobs for the New Economy (or the Old) Russell Mokhiber The Black Hillary: Obama is Just Another Political Sedative Robert Fantina The Gulf of Tonkin and the Strait of Hormuz Dave Zirin Butts on Parade Shamako Nobel I Am an Emcee: the Politics of Hip Hop John Ross Zapatista Women Encounter Themselves Brenda Norrell Apaches Defend Homeland from Homeland Security Laura Carlsen Why Bolivia Matters Patrick Irelan Remember the Maine! Evelyn J. Pringle The Holes in Bush's FDA Jonathan M. Feldman After Iowa and New Hampshire: a Strategy for Rebuilding the Peace Movement Michael Dickinson Playing Soldier Website of the Day Sean Hannity on the Run!   January 7, 2008 Chris Floyd There Will Be Blood: But No Justice for Iraq Atrocities John Blair Remove That Man! Creeping Fascism in Indiana Uri Avnery The Case of the White Bird Andy Worthington Who Are the Gitmo Saudis? Binoy Kampmark Needling the Convict: Lethal Injection and the Supreme Court David Macaray Women on Strike Ralph Nader Obamarama: the Politics of the Smooth Mood Michael Donnelly It's the War Vote(s), Stupid! Ron Jacobs Ron Paul's Run: Is Being Against the War Enough? Gideon Levy The Hostile President Dave Lindorff A Real 9/11 Cover-Up? Sibel Edmonds, Turkey and the Bomb Website of the Day Plagues and Pleasures on the Salton Sea   January 5 / 6, 2008 Douglas Valentine Good Guys in Black Hoods Kevin Young The US Occupation and Popular Opinion in Iraq Richard Rhames Saddam Who? Saul Landau Bush Snatches Defeat from Victory Marc Lynch Why Bush's Iran Strategy is Failing Robert Fantina Iowa, Democrats and the Iraq War Donna Volatile Antiwar Soldier: an Interview with Jonathan Hutto, Sr. Jelle Bruinsma Norman Finkelstein in The Netherlands Bob Sutcliffe Remembering Andrew Glyn, Rebel Economist Harvey Wasserman Anti-Nuclear Renaissance Missy Beattie Why Obama Can't Save Us David Swanson Remembering the Separation of Powers Jacob Hornberger The Importance of the Padilla Case Shepherd Bliss Survival Tools from Kokopelli Farms Ron Jacobs Bleeding Kansas Poets' Basement Patti Smith, B.R. Gowani and Peter Buknatski Website of the Weekend Jimmy Dean Sausage Call Complaint   January 4, 2008 Cockburn / St. Clair A Good Night in Iowa Jonathan Cook War Crimes Airbrushed from History Paul Craig Roberts Thinking for Yourself is Now a Crime Stan Goff Ron Paul's Monkeywrench Dave Lindorff Clinton's Iowa Flop Exposes DLC Myths as Frauds Niranjan Ramakrishnan To Pindi Station Allan Nairn U.S. Elections Over Before They Began Joshua Frank The Failures of Sectarianism Peter Morici Economy on the Skids Mary McInnis Iowa Cocky-Us: How to be a Caucus Tease Website of the Day The Return of Obama Girl   January 3, 2008 Fatima Bhutto Farewell to Wadi Bua Pam Martens The Free Market Myth Dissolves into Chaos Joanne Mariner The Presidential Candidates and Torture Zoltan Grossman Remember the '80s: Social Movements Between Woodstock and the Web David Domke The Echoing Press and Huckabee Norman Solomon Edwards Reconsidered Nikolas Kozloff Return of the Faux Liberal Jacob G. Hornberger The Padilla Case and the Future of Habeas Corpus Martha Rosenberg Quit Picking on Huckabee's Son, Michael Vick Russell Means This Property is Condemned: a Notice to Those Occupying Lakotah Lands Website of the Day WolfQuest   January 2, 2008 Jeff Taylor The Left and Ron Paul M. Shahid Alam The Life and Death of Benazir Bhutto: a Pakistani Tragedy Gary Leupp Madness Compounding Madness: Calls for Intervention in Pakistan Paul Craig Roberts Criminals with Badges Heather Gray Georgia's Racist Death Penalty Fred Gardner and Shobhit Arora Dr. Strangelove's Nemesis David Macaray Labor Unions and Taft-Hartley Benjamin Dangl Fear and Loathing in Bolivia     January 1, 2008 Iain A. Boal City of Disappearances B. R. Gowani Benazir's Death in Crisistan Shahid Mahmood Bhutto and the Press Linn Washington, Jr. Old Injustices Endure: From Crack Sentences to Racial Profiling Harvey Wasserman Taking Leonard Peltier to Iowa: the Moral Low Point of the Clinton Era John Ross 2008, Already a Year to Forget Website of the Day The Thrill is Gone: BB and Gladys   December 31, 2007 Alexander Cockburn Goodbye 2007 and Good Riddance! Tariq Ali Pakistan, the Aftermath Liaquat Ali Khan The Perfidy of Pakistan's Rulers Wajahat Ali After Bhutto, a Nuclear Pakistan? Robert Fisk Who Killed Bhutto? Ajai Sahni Myths and Realities About Benazir Bhutto and Pakistan's Dark Future Marwan Bishara You Say Talk, I Say Attack: The Middle East and the US Presidential Election Campaigns Uri Avnery The Beilin Syndrome Mark T. Harris Does This Happen in Canada? Brenda Norrell Resistance and Censorship Website of the Day A People United Will Never Be Defeated   December 29 / 30, 2007 Alexander Cockburn Options in America: Kill Yourself or Have a Baby Tariq Ali Indignation and Fear Stalk Pakistan Fawzia Afzal-Khan My Encounter with Benazir Bhutto Gary Leupp The U.S. and Pakistan After 9/11: Blowback from an Unholy Alliance China Hand Pakistan Stares Into the Abyss Jacob Hornberger Stop Medddling in Pakistan John Chuckman Pakistan and the Failure of Quick-Fix Politics Missy Beattie Evaluating Bush with the Bhutto Corruption Standard Ralph Nader Who Will Take the Next Step? Fidel Castro There Hasn't Been a Day in My Life When I Haven't Learned Something Robert Fantina The Sham of Homeland Security Greg Moses Beauty from the Heart of Texas Catherine Lutz What We Can Not See: Art and Bombing Kristin Van Tassel Seeing in the Dark Kim Nicolini Redacted: Brian DePalma's Scream of Outrage Phyllis Pollack Keith Richards Runs With Rudolph Once More Poets' Basement Landau, Gibbons and Davies Website of the Weekend Driving Karachi in Search of the Perfect Naan   December 28, 2007 Farzana Versey The Complex Electra Wajahat Ali A Pakistani Requiem Binoy Kampmark Death in Rawalpindi: Bhutto and Her Legacy Ayesha Ijaz Khan Not Dead Yet: The Pakistan People's Party Still Survives Anthony DiMaggio Turkey's Bombing of Iraq Ray McGovern Creeping Fascism Jim Goodman Biofuels, the Biggest Scam Going Ron Jacobs Transcending the Colonizer's History: Iran, a People Interrupted Russell Hoffman Mini-Nukes by Toshiba John Murphy Greens Gone Wild Website of the Day Guiliani Campaign Official: "Only Rudy Can Defeat the Muslims"   December 27, 2007 Dilip Hiro A Tragedy Foretold: Will Bhutto's Death be a Boost for Her Party? Murtaza Shibli Who Killed Bhutto? Stephen Soldz Fallujah, the Information War and U.S. Propaganda Bill Quigley Locked Outside the Gates Paul Craig Roberts The Great American Lock-Up Omer Subhani Killing Bhutto: What Happens Next in Pakistan? Marjorie Cohn The Torture Tape Cover-Up: How High Does It Go? Allan Nairn Cataclysm By Money Whim Jacob G. Hornberger Smearing Ron Paul: Shame on the NYT Norman Solomon Channeling Suze Orman Patrick Irelan Rumsfeld Spills the Ink Ben Tripp Pass the Razor Blades Website of the Day Quagmire, For What It's Worth   December 26, 2007 Charles Tripp From One Saddam to Fifty Paul Armentano No-Knock, You're Dead Rannie Amiri Lebanon in Search of a Government Stanley Heller Brzezinski and Charlie Wilson's War John Walsh Two Unreasonable Men Martha Rosenberg The Strange Career of Scott Gottlieb Norman Madarasz Bolivia Amends New Constitution and Faces Mutiny from Within Website of the Day Cockburn at the Battle of Ideas   December 25, 2007 Patrick Cockburn Conscience and Empire December 24, 2007 Andrea Peacock A Dark Ride on the Border Tariq Ali Thinking of Edward Said Uri Avnery Help! A Ceasefire! Jill Jameson Burma is Not Back to Normal: A Trip from Rangoon to Mae Sot Steve Melendez Russell Means Goes to Washington Mike Whitney The Big Fix Chuck Munson Not Getting It About New Orleans John Walsh Clueless Crusaders Farzana Versey Tony Blair and the Hawking of Religion Richard Neville Dreaming of a White House Christmas Website of the Day Back in the USSR December 22 / 23, 2007 Alexander Cockburn Mike Huckabee's Ascending Chariot Ralph Nader Politics and Profits: How the Oil Cartel Gets Its Way Andy Worthington Intelligence Failures, Battlefield Myths and Unaccountable Prisons in Afghanistan Ahmad Faruqui The Comedian of Pakistan Bill Moyers Society on Steroids Rev. William E. Alberts Blessed are the Peacemakers Timothy J. Freeman From Kant to Lennon: Can War Really be Over? Anthony DiMaggio Democrats Continue to Capitulate on Iraq Fred Gardner Molecule of the Year, Cannabiodiol Paul Krassner Enhanced Hazing Techniques Seth Sandronsky 17 Years of Meanness: Repealing California's Three Strikes Law William Loren Katz Christmas Eve Freedom Fighters: Recalling the Battle of Lake Okeechobee Michael Dickinson In the Dungeon of the Zabita Ron Jacobs Why Leon Russell Still Matters David Vest Doyle Bramhall's "Is It News?" Poets' Basement Orloski, Davies and Ford Website of the Weekend George W. Hates Santa   December 21, 2007 John Ross New Massacres Loom in Mexico Jacob Hornberger Nothing Can Morally Justify the Invasion of Iraq Dick J. Reavis A Way Out of the Newspaper Abyss Jeff Cohen and Norman Solomon The 2007 P.U.-litzer Prizes Peter Morici Business as Usual as Recession Looms Jack McCarthy Let Us Now Praise Judith Regan (Even If She Did Sleep with Bernie Kerik) Raúl Zibechi Sex and Revolution Steve Early How the Presidential Candidates Made Me an Atheist David Macaray Union Aftermath Patrick Bond Zuma, the Center-Left and the Left-Left in S. Africa Lakota Freedom Delegation A Declaration of Independence from the USA Website of the Day Solomon v. Beck: Tale of the Tape   December 20, 2007 David Rosen Mitt Romney's Secret Life as a Pornographer Alan Farago The Huckster and the Wreckage: Jeb Bush and the Subprime Mortgage Crisis Laura Carlsen Standing Up to NAFTA Ashley Dawson The Return of the Bread Riot Wayne Smith and Jennifer Schuett Cuba Changes, US Policy Stagnates Website of the Day How to Talk to a FoxNews Reporter   December 19, 2007 Saul Landau Is the NIE Bush's Watergate? Paul W. Lovinger Hillary the Hawk Norman Solomon The Mad Corporate World of Glenn Beck Dave Zirin George Mitchell's Drugs of Choice Marjorie Cohn Bush Still Spinning Iranian Nukes Sen. Russell Feingold The Iraq War is Exhausting Our Nation Sonja Karkar A Christmas Reflection on Palestine Anthony Papa Open the Drug Gulags Christopher Ketcham Pave the Holy Lands with Good Intentions Davey D Britney's Little Sister is Pregnant: Should We Blame Hip Hop? Website of the Day When Republicans Use the F-Word on TV   December 18, 2007 R. F. Blader The Politics of Teen Pregnancy George Wuerthner Gunning for Wolves in Idaho Steven Higgs Can the NAFTA Superhighway be Stopped? Vijay Prashad Encounters with Ghadar David Macaray The Free Rider Problem Ralph Nader Nine Books That Make a Difference: a Reading List for the Holidays Eva Liddell Privatizing War Abroad, Invading Privacy at Home Martha Rosenberg While the Bodies are Still Warm: Drugs, Shrinks and Shooters Dave Lindorff When Impeachment is Out of Print Peter Morici The Consequences the Trade Deficit Website of the Day Ron Paul: How Fascism Will Come to America   December 17, 2007 Mike Whitney Staring Into the Abyss Tom Barry Planning the War on Immigrants Uri Avnery A Gaza Masada? Greg Moses Crossing the Line in Texas Allan Nairn Terrorism; Counter- Terrorism: Excuses for Murder Patrick Bond South Africa's Fight Between Hostile Brothers Stephen Lendman Police State America Charles Jonkel Grizzly Right of Way Laray Polk An Inside-Out Crisis in Gaza Stephen Fleischman Pawns in Their Game December 15 / 16, 2007 Peter Linebaugh A People's Penny for the Magna Carta Howard Zinn Bomb After Bomb Standard Schaefer The Greening of Big Tobacco Raymond J. Lawrence Let's Take Christ Out of Christmas Alan Farago Down on Desolation Row: the Vultures and the Growth Machine Saul Landau Lord Byron and the Bad Tourists Jenna Orkin Lying to "Reassure" the Public: Bush's EPA and the Post-9/11 Toxic Air Cover-Up Ahmad Samih Khalidi Why a Palestinian "State" is a Punitive Construct Robert Fantina Politics By Photo-Op Missy Comley Beattie Resistance Amid the Ruins Ramzy Baroud Of Mormons and Muslims James L. Secor A Vision for China's Future Elijah Wald Ike Turner's Music Won't be Forgotten Website of the Weekend The Alliance for the Wild Rockies Needs (and Deserves) Your Support   December 14, 2007 JoAnn Wypijewski The Dirty Cad: What Giuliani's Sex Life Tells Us About Him John Ross Iraqi Refugees Return: One Cruel Hoax Jacob Hornberger Terror Suspects Belong in Federal Court Andy Worthington Guantánamo and the Supreme Court: What Happened? Allan Nairn "Shoot Them on the Spot": Rewarding War Crimes Dave Zirin The Mitchell Report: Absolving the Owners Dave Lindorff The First Cut is the Deepest Misty MacDuffee Toxic Grizzlies Ben Terrall What Happened to Lovinsky Pierre-Antoine? Dr. Mustafa Barghouthi Prerequisites for Peace Website of the Day Sen. Kit Bond: "Waterboarding is Like Swimming"   December 13, 2007 Paul Craig Roberts Shrinking the Dollar from the Inside-Out Mike Whitney Dershowitz for the Defense--of Waterboarding Ron Jacobs Blank Check DemocratsL the Great War Funding Conspiracy Norman Solomon The USA's Human Rights Daze Peter Morici The Dragon and the Toothless Dog: China Doesn't Flinch Sandy Mayes Blocking the Strykers: 13 Days of War Resistance at Port Olympia Franklin Lamb The UN in Lebanon: Whose Mission Is It Fulfilling? Jacob Hornberger Don't Reform the CIA, Abolish It Nadim Rouhana An Interloper in My Own Land Dave Zirin On Pigskin and Petrol Website of the Day Rachel's Needs (and Deserves) Your Support! December 12, 2007 Allan Nairn US Intelligence is Tapping Indonesian Phones Alan Farago How Sprawl Eats Its Young Ray McGovern Torture, Lies and Videotape Winslow T. Wheeler The Phony Pentagon Budget Cuts Evan Jones The Raid on Great Western: Why an Australian Bank Might Spell Doom for the US Farm Belt James Petras An Open Letter to Sarkozy on the Exchange of Political Prisonsers Joel Hirschorn The Horserace Fiction: Clinton, Obama and the Democratic Machine Joshua Frank Why Ron Paul Deserves Our Attention Sherry Wolf Why the Left Should Reject Ron Paul Dan Bacher Survey of a Fish Graveyard Website of the Day Men Eating Bugs                 Subscribe Online

January 18, 2008 When the Remedy is as Bad as the Abuses Terrorism and Preventative Detention By JOANNE MARINER Since the September 11 terrorist attacks, pressure to combat terrorism effectively, speedily, and decisively has warped--or even rendered unrecognizable--basic legal rules and institutions. Suspects taken into U.S. custody have, in some instances, been "disappeared" and tortured rather than arrested, investigated, and prosecuted. Hundreds of others have been held in indefinite detention at Guantanamo, without explicit congressional or judicial authorization. Ad hoc military commission proceedings have, for some of these people, replaced fair trials. Even some of the proposed remedies for these abuses are worrying. The alternative of preventive (administrative) detention, recommended by some commentators as the best way to deal with terrorist suspects--or, more modestly, as a means of closing Guantanamo without releasing dangerous men--is of particular concern. Defendants, Enemy Combatants, and Detainees Let's quickly run through the possible legal methods for handling suspected terrorists (leaving out disappearance and other methods that have nothing to do with the law). There is the option of prosecution (either in regular courts, in specialized courts, in courts-martial or in military commissions). There is detention as an enemy combatant, prisoner of war, security internee, or in another category whose purported justification is found in the laws of war. And there is the preventive detention option, which does not currently exist under U.S. law. Now, in assessing the various alternative approaches, let's ignore their labels, and even put aside their theoretical frameworks (backward-looking vs. forward-looking, wartime vs. peacetime, etc.). Let's simply examine what, concretely and specifically, each approach offers in terms of the process by which detention decisions are made. Criminal prosecutions, whatever the court, have certain common characteristics. First, the burden is on the government to prove guilt, and guilt must be shown beyond a reasonable doubt. Second, while rules of evidence vary from court to court, in general the evidence relied upon by the prosecution must be disclosed to the defendant: convictions cannot be based on secret evidence. And third, the assistance of counsel must be allowed. So-called enemy combatants held at Guantanamo (like security internees held in Iraq) have a very different--and quite inferior--set of procedural rights. First, the Combatant Status Review Tribunal proceedings, or CSRTs, held at Guantanamo effectively place the burden of proof on the detainee. Second, secret evidence is not just allowed; it plays a determinative role in all of the proceedings. Third, although detainees at Guantanamo now have access to legal counsel for proceedings in federal court, lawyers are not allowed to represent detainees at CSRT proceedings. (Moreover, most detainees had not yet seen their lawyers at the time they underwent their first round of CSRTs.) Detention Based on a "Reasonable Belief" So where does preventive detention fit on this scale of procedural rights? Obviously, it varies according to the specific detention scheme at issue, and most commentators who have recommended the option have not fleshed out their proposals in any great detail. Yet it's possible to sketch out a basic outline of the option based on how it has been used in other countries, and also judging by the objections that proponents of preventive detention have made to the option of a criminal trial. (Presumably any preventive detention proposal would not include the criminal justice guarantees that they have singled out as problematic.) First, a clear difference from the CSRT system is that most proponents of preventive detention are willing to accept that detainees be granted the assistance of counsel. While there may be varying views as to when this right would attach--many proponents would permit an initial interrogation period during which a detainee's lawyer is barred--the right to counsel during the actual adjudicative proceedings seems secure. Second, a clear difference from the criminal justice system lies in the standard of proof. Preventive detention, almost by definition, implies a standard of proof short of "beyond a reasonable doubt." In large part, this is a basic consequence of preventive detention's forward-looking character. No one has an accurate crystal ball, and without one it is difficult to prove anyone's future behavior beyond a reasonable doubt. The past is stable; the future is always contingent. Reflecting this (but also evidencing the distressing lack of certainty associated with preventive detention), standards of proof in preventive detention proceedings tend to be low. In the U.K., for example, the preventive detention scheme introduced in the 2001 counterterrorism law, passed after the September 11 attacks, allowed the Home Secretary to order a person's detention if he had a "reasonable belief" that the person was a threat to national security and a "suspicion" that the person was an international terrorist or had links with an international terrorist group. "Reasonable belief," a standard that is effectively synonymous with probable cause, is only sufficient under normal criminal justice rules to support an arrest, not to justify indefinite detention for years. Finally, although other procedural safeguards may vary as well, a key distinction between preventive detention schemes and the criminal justice model is in the rules of evidence. The rules are typically much looser under the preventive detention model, and, of greatest concern, secret evidence may be used. The crucial problem is that defendants cannot meaningfully challenge evidence that they are not allowed to see. Detention Based on Thin and Unreliable Evidence In an op-ed published in the New York Times last Sunday, former New Jersey Attorney General John Farmer criticized the prosecution of Jose Padilla, suggesting that the case demonstrated how relying on the criminal justice system to handle terrorist suspects threatens to stretch the system beyond its limits. His sense of the intense pressures attending high-profile terrorism cases may be correct. But his solution--to switch to preventive detention--does not remedy any of the unfairness that he perceived in Padilla's treatment. As he describes it, Padilla was prosecuted on a vague charge, and only a smidgen of evidence. But if the system failed (if it was unjust to hold Padilla on this basis), why would changing the label applied to the system--calling it preventive detention and not a criminal trial--magically make it alright? It may be true that unlike the criminal justice system, preventive detention schemes don't need to be stretched in order to detain people unjustly. But whether they call it preventive detention, or an unfair trial, or Guantanamo plus, the problem is essentially the same. Joanne Mariner is a human rights attorney based in New York.     Your Ad Here

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